By Brad Friedman on 9/2/2014, 2:04pm PT  

Earlier this summer, a statewide primary election and an aborted recount that followed it, revealed a pretty enormous problem with California's recount laws. Several enormous problems, actually. As we reported in July, those problems revealed, among other things, that it's now "a great time to steal an election in California."

The June 3rd primary race for Controller, the state's chief financial officer, was the closest statewide contest in history. The primary to determine who would go on to compete in the general election was ultimately decided by just 481 votes [PDF] out of well over 4 million ballots cast.

In response, Democrats in the state legislature took quick action before last week's end of the legislative session to try and mitigate at least some of the gaping problems, at least temporarily, as revealed by the mess in advance of the November general election.

Republicans have now blocked that effort...

During the roller-coaster post-election canvass in June, Assemblymember John Pérez and Betty Yee, both Democrats, took turns holding second place behind Republican Ashley Swearengin after the statewide "Top Two" primary for Controller. In a "Top Two" primary, the two top vote-getters, regardless of party affiliation, go on to compete in general election in November.

After the race was finally certified 30 days later, Yee held the second place spot over Pérez by approximately 1/100th of one percent.

In a race reported by the unverified computer tabulators to be that extraordinarily close, naturally a "recount" was in order.

[NOTE: The BRAD BLOG generally uses quotes around the word "recount" to denote post-election hand-counts of ballots which have never actually been counted by human beings, but rather, only tabulated by computers, either correctly or incorrectly, during the official tally. It's impossible to know whether those computers actually tallied votes accurately unless paper ballots are examined by hand.]

California, however, has no automatic "recount" provision. While a candidate, or any voter, may receive a "recount" if they like, they must pay for it themselves (the requester is refunded the cost of the post-election count if it leads to a reversal of the previously-certified results.)

As Pérez began his attempted "recount", a number of gaping flaws in the state's election code quickly became apparent.

The cost and time it takes for a statewide count, in a state the size of California, are both exorbitant. The fees for counting ballots are allowed to be arbitrarily set by each county's Registrar (which leads to a number of problems in and of itself, as we have been reporting, nearly exclusively, for years in this state - see here and here for just two recent examples.)

Moreover, due to the peculiar way that statewide voter- or candidate-requested counts are allowed to proceed one county at a time, rather than all of them at once, the time it takes to count votes in each of California's 58 counties could stretch beyond the next election. In this case, the result might have been the wrong person appearing on the November general election ballot.

After just a week's worth of counting, Pérez ultimately threw in the towel, with few votes changing among the small number of ballots that officials examined in two different counties, and the realization that a complete statewide "recount" to assure that computer tallies were actually correct, would cost more than virtually any candidate could afford, much less for a down-ballot state Controller's primary race.

The aborted post-election count, as we reported at the time, also laid out a roadmap for how an election might be stolen in the state, with little chance of detection:

The takeaway from this entire fine mess is, once again, that the machines win and voters lose. Remember how folks always love to say that paper ballots are important, because in the event of a close election, they can be checked to make sure the results were reported correctly by the computer scanners? Well, even in California, where most of the state votes on paper ballots, if they are never actually counted by any human being to assure accuracy --- even in the closest of races --- what good are those paper ballots?

If a very well-financed former Assembly Speaker could not even afford to find out if he actually won a primary election or not, what chance would other, even more obscure candidates have of determining if they'd actually won or not in races reported by the computer tabulators to be extremely close?

In response, Assemblyman Kevin Mullin jumped in to propose a bill (AB 2194) that would require automatic state-sponsored "recounts" in contests where the margin was less than 1/10th of a percent. In truth, it was an incredibly conservative bill (other states have automated recounts when margins are less than .5% or even higher); would have only applied to statewide races; would have only been in effect until July 2015; and wouldn't have made any changes to the virtually arbitrary pricing that Registrars are allowed to charge for voter-requested counts. (Such arbitrary and absurdly disparate pricing from county to county and even election to election, as we have reported in great detail, has stopped many attempted "recounts" dead in their tracks in a number of statewide ballot initiatives, Congressional races and local contests over recent years in the state.)

Mullin's bill would have offered a reasonable, if incomplete and temporary, response to some of the problems revealed by this summer's aborted Controller's race "recount". But GOP lawmakers in the state Senate decided last week that they would have none of it.

"Assembly Bill 2194, introduced by Assemblymember Kevin Mullin, (D-San Mateo) to address the issue of recounts in statewide elections has stalled in the State Senate," Mullin's Assembly website announced late Friday. "Senate Republicans refused to provide the necessary votes to refer the bill to committee. The bill came up for a procedural vote on August 21st, which would have allowed it to be heard past the committee hearing deadline, requiring a two-thirds majority in the Senate. Democrats were in support, but Republicans voted 'no', effectively denying the bill the opportunity to have a fair hearing."

"Ensuring a fair and transparent recount process should be of bipartisan interest," Mullin says. "If we are truly listening, criticism of the existing recount process resonated loudly from all corners of the state, and at the very least the full legislature should have been given the opportunity to consider the bill on its merits."

The attempt to correct the huge problems in the state's "recount" laws will have to wait until after November, when the legislature convenes their new session in December.

"Mullin plans to introduce comprehensive, permanent recount reform legislation on the first day of the 2015-16 session, which will begin this upcoming December," according to the Assemblyman's statement. "Because the new legislation will not include an urgency clause, which triggers a two-thirds vote requirement, it will require a simple majority vote for passage. Mullin is optimistic that the bill will stand a better chance next year with a majority vote threshold."

Given the huge Democratic majority in the state legislature, its chances of succeeding next time are, indeed, much better. We'll hope that this time Mullin includes much-needed statewide standards for "recount" pricing in each county with, at the very very least, pricing for such counts posted on each County Registrar's website well before Election Day.

In the meantime, all in all, it remains a great time to steal a California election.

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